Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2015-08-11
FILE: 9659/ADLS
CASE NAME: 9659 v. Registrar of Motor Vehicles
Appeal under section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles pursuant to section 48.3(2) of that Act - to appeal a 90-Day Administrative Driver’s Licence Suspension
Appellant Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard in Toronto: July 23, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on July 23, 2015, in Toronto, to consider the Appellant's appeal pursuant to section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").
The Tribunal released its Decision on July 24, 2015, with reasons to follow.
THE TRIBUNAL RULED TO CONFIRM the suspension imposed by the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 48.3 of the Act, for the following reasons.
BACKGROUND
The Appellant appealed, by way of a Notice of Appeal under section 50.1 of the Act, from the order of the Registrar dated June 25, 2015.
The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
The Appellant denies that he had consumed any alcohol on or about the date in question and that the odour of alcohol detected by the police officers originated from empty alcohol containers inside his vehicle. Furthermore, he states that he was unable to provide a breath sample on demand because of a long uvula (tissue on the centre of the soft palate). He provided a statement from his family physician purporting to support this claim.
The Tribunal finds that the medical statement does not establish a rational medical basis for the grounds stated in the Notice of Appeal.
Preliminary Matters
At the onset of the hearing, the Tribunal ordered that witnesses, except for the parties, be excluded during the testimony of other witnesses. The witnesses were cautioned not to discuss their evidence with the parties or other witnesses for the duration of the hearing.
ISSUE
Did the Appellant fail or refuse to comply with a demand made under section 254 of the Criminal Code (Canada) because he was unable to do so for a medical reason?
LAW
The legislation governing the Administrative Driver’s Licence Suspension (“ADLS”) appeals under subsection 50.1(1) and (2) of the Act states:
50.1(1) A person whose driver’s licence is suspended under Section 48.3 may appeal the suspension to the Tribunal.
(2) The grounds on which a person may appeal under subsection (1) and the only grounds on which the Tribunal may order that the suspension be set aside are,
(a) that the person whose licence was suspended is not the same individual to whom a demand was made, or from whom a sample was taken, or who performed physical co-ordination tests or submitted to an evaluation, as the case may be, under section 254 or 256 of the Criminal Code (Canada); or
(b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason.
The Act also states under section 50.1(4):
The [Tribunal] may confirm the suspension or may order that the suspension be set aside.
FACTS
The Appellant’s Evidence
The Appellant stated that after working two shifts (9:00 a.m. to 2:30 p.m. and 6:30 p.m. to 3:00 a.m.), he was driving home at approximately 4:30 a.m. on June 25, 2015, when he slowed down to try and avoid an object on the road. A police vehicle with its lights activated caused him to stop. He swerved when he did so. He was asked for his driver’s licence, ownership certificate and insurance certificate. When he was asked if he had consumed any alcohol, he stated “No”.
He exited his car when ordered to do so, and stated that he stumbled because he was not wearing any shoes.
The police officer told him that he detected an odour of alcohol and informed him that he would be taken to the police detachment for a breath sample. He was then arrested and handcuffed and taken to the detachment. He spoke to Duty Counsel who advised him to take the breath test.
He stated that he had a medical condition that caused him to have some difficulty breathing, especially after prolonged speaking. He stated that he told this to the police officer in the breathalyzer room. He informed the Tribunal that the DVD of the interaction will show that he did so (Exhibit #3).
He asked to be taken to the hospital for a blood test and was refused. He tried to comply with the demand for a breath sample but was unable to do so after ten to twelve attempts.
He was detained until approximately 1:30 p.m. while the paperwork was being completed, at which time he was released and picked up by his parents.
He went to work the next day and saw his family doctor the following day. His doctor advised him to lose weight.
Under cross-examination, he stated that he does not drink, that he used to smoke two packs of cigarettes a day and now smokes 3/4 of a pack per day. He acknowledged that he did not undergo a pulmonary function test and was not prescribed puffers to assist his breathing.
The family doctor provided the following information on the medical form attached to the Notice of Appeal:
Details and diagnosis of patient’s condition related to this appeal
Patient stated he was coming from work and was pulled over by
Type of measurements or recent tests taken including dates.
If gets sore throat it bothers more but otherwise he feels OK, so nothing is done but advised to lose weight.
Relevant details of last visit, including date of patient’s last visit.
29/6/2015
How long has the applicant been your patient?
22+ years
The Registrar’s Evidence
Police Constable Knight, from the Caledon Ontario Provincial Police and his partner, Police Constable Bucsis, were travelling southbound on a rural road in a marked cruiser at approximately 4:33 a.m. on June 25, 2015.
They observed a vehicle stopped with brake lights on in the southbound lane about 200 meters ahead. As they approached, the vehicle began to move and drove over the solid middle line and then back into its own lane. The police stated that they did not observe an animal or other object on the road that might have caused the Appellant’s vehicle to swerve.
P.C. Knight approached the driver’s side and when the driver lowered his window, he was asked by P.C. Bucsis if he had consumed any alcohol. The driver responded “No”.
A strong odour of alcohol was detected by the police who ordered the driver to put the vehicle in park. The police demanded his driver’s licence, ownership and proof of insurance. The driver was identified as the Appellant by P.C. Knight at this hearing.
The Appellant was informed that he must accompany the police for an alcohol screening test. The Appellant was unsteady upon exiting the vehicle, and was arrested and handcuffed.
A search of the vehicle revealed a number of alcohol containers including a half open can of beer. He was read his right to counsel and was taken to the detachment where he requested to speak to Duty Counsel, who advised him to comply with the breath demand. He was cautioned and a breath sample was demanded.
The Appellant made a total of ten attempts at blowing into the analyzer tube.
At the request of the Appellant, the Tribunal viewed a video recording taken in the breath test room (Exhibit #3).
In the video, the Appellant was observed to puff his cheeks during the tests, and P.C. Bucsis, a qualified breathalyzer technician since 2011, was observed telling the Appellant that he saw him puffing his cheeks and that he felt air escaping around the outside of the mouthpiece tube each time he blew. The breath analyzer did not detect a sufficient sample or produce a steady signal to indicate a successful test during any of the attempts.
P.C. Bucsis testified that these circumstances indicated that the Appellant was obstructing the flow of air into the tube, by using his tongue to block the opening.
P.C. Bucsis demonstrated to the Appellant how to blow correctly, and repeatedly informed the Appellant that failure to provide a suitable sample would result in a charge under section 254 of the Criminal Code (Canada) and an administrative suspension of his driver’s licence for 90 days. At no time was the Appellant heard to inform P.C. Bucsis that he had a medical condition that precluded him from providing a suitable sample.
He was charged with failing to provide a suitable sample of his breath and removed to the cell.
In reply to the Appellant’s question of the reason for not taking a blood sample, P.C. Knight stated that blood samples for alcohol are not requested when a driver is conscious and not admitted to hospital.
Submission by the Appellant
The Appellant submitted that he was attempting to avoid an object on the road ahead when police observed his vehicle weaving. He submitted that he was unsteady upon exiting his vehicle because he was not wearing footwear.
He stated that at the detachment, he asked the police officers to take him to the hospital for a blood test for alcohol but his request was refused.
He submitted that his long uvula is a long standing condition, which has been examined by a specialist in the past and surgery was recommended but was not carried out.
He maintained that he does not drink alcohol and that the odour of alcohol detected by the police was caused by the open container and empty bottles in his car, which were left behind by friends.
Submission by the Registrar
Mr. Biel stated that the police officers had reasonable grounds for stopping the Appellant’s vehicle and for demanding that he accompany them to the detachment for a breath test for alcohol.
There is no medical evidence to support the Appellant’s refusal to submit to the demand for a breath sample, and he submitted that the doctor’s certificate that the long uvula precluded him from providing a breath sample on demand is pure speculation.
Failed attempts at blowing in the breathalyzer tube had obvious flaws with puffed cheeks and air escape, as detected by P.C. Bucsis and recorded in the DVD (Exhibit #3).
Failed attempts to provide a satisfactory sample of breath constitutes a refusal to blow and therefore justifies the charge under section 254 of the Criminal Code (Canada).
APPLICATION OF THE LAW TO FACTS
The Appellant was identified at the hearing as the driver who was issued a demand for a breath sample for alcohol screening on June 25, 2015.
The Appellant refused to provide a satisfactory sample of his breath for alcohol screening by failing to complete the blow approximately ten times.
The Tribunal finds the testimony of P.C. Bucsis, an experienced breathalyzer technician, to be credible, and it was consistent with what the Tribunal observed in the video recording.
With air escaping around the outside of the analyzer tube when the Appellant blew into the device, this is consistent with the Appellant obstructing the opening of the tube with his tongue, rather than being unable to provide a sufficiently strong or sustained breath sample for a medical reason.
The Appellant has failed to provide medical evidence to support his failure to provide a satisfactory sample of his breath on demand. The Tribunal finds that credible medical evidence has not been provided to support the claim that a long uvula would preclude providing a satisfactory breath sample. The physician’s note, which simply states that the Appellant has a long uvula, is insufficient in that regard. It does not credibly suggest a medical inability to provide a breath sample as a consequence of that condition.
The Tribunal finds that the Appellant refused to comply with a demand made under section 254 of the Criminal Code (Canada) without a medical reason.
The Registrar was justified in issuing a suspension of the Appellant’s driving privilege under section 48.3 of the Act.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar, dated June 25, 2015, pursuant to section 48.3 of the Act and having considered the evidence filed with the Tribunal and the submissions of the Registrar and of the Appellant;
Pursuant to the authority vested in it under section 50.1(4) of the Act, the Tribunal confirms the suspension.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: August 11, 2015